IN THE HGH COURT OF SWAZILAND
JUDGMENT
HELD AT MBABANE
CRIM. CASE NO. 117/12
In the matter between:
REX
v
MXOLISI MACHILDREN SHONGWE
Neutral citation:
Rex and Mxolisi Machildren Shongwe (117/12) [2014] SZHC 110
(5 JUNE 2014)
Coram:
Q.M. MABUZA J
Heard:
10/6/13; 11/6/13; 17/7/13; 18/7/13; 7/10/13; 15/10/13 and 25/2/14.
Delivered:
5 JUNE 2014
Summary:
The Accused was charged with the crime of murder - The
Crown evidence mostly circumstantial - The element of
intention not proved - The facts of the case clearly support a
finding of culpable homicide and not murder - The Accused
found guilty of culpable homicide.
JUDGMENT
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MABUZA –J
[1]
The Accused is charged with the crime of murder, it being alleged that on or about the
18th September 2011 at or near Motshane area in the Hohho District the said Accused did
unlawfully and intentionally kill one SidumoTsabedze and did thereby commit the crime
of murder. He pleaded not guilty to the charge and his attorney Mr. N.B. Mabuza
confirmed the plea as being consistent with his instructions.
[2]
The deceased met his death on the18th September 2011 at Motshane. He and his lover,
PW2 left Ngini bar after having some drinks and went to his home which is in Motshane.
PW2 told the Court that along the way they were accosted by a man who grabbed the
deceased by his neck stabbed him and he fell. PW2 raised an alarm and the deceased’s
friends came out to assist. They looked for the deceased and could not find him. The
search resumed in the morning but they still could not find him. She looked for him at
the hospital but he was not there. The police later telephoned her to tell her that they had
found him.
[3]
She did not see the assailant and could not identify him as it was already night when they
were accosted at about 12:00 p.m.
[4]
Inspector Amos Dlamini (PW3) testified that a certain Themba Shabangu found the body
of the deceased and alerted the police. The body was in plain view on open ground near
ka-Ngini bus stop behind Darkton Complex at Motshane. The scenes of crimes police
were called to photograph the deceased and the scene before the body was taken to the
mortuary.
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[5]
Dr. Reddy (PW1) the pathologist confirmed that the cause of death was due to
haemorrhage as a result of “penetrating injury to right subclavian blood vessels.” PW1
further testified that there were two other wounds which were simple, namely a contused
abrasion on the right shoulder and a scratch on the outer aspect of the right side of the
chest. He said that the chest wound was the fatal one because it had clean cut edges
which were consistent with a sharp weapon such as a knife. He handed in the postmortem report as Exhibit “A”.
[6]
Mr. Mabuza for the Accused put the Accused’s defence to PW2 and in so doing did not
deny that the Accused and the deceased met on the road that fateful night. He put to the
witness that when they met, the deceased insulted him by saying in Siswati “nasi
sigwadzi sihamba sodvwa” meaning here comes a bachelor walking alone without a
girlfriend.
[7]
The word “sigwadzi” has a more sinister meaning in siswati than its English collory of
“bachelor”. PW2 denies that the deceased called the Accused “sigwadzi”. It was further
put to PW2 that after the deceased had called the Accused “sigwadzi” the Accused asked
him why he had called him “sigwadzi” but the deceased clapped him and a fight ensued.
PW2 responded that there was no fight between the two. There was even a suggestion by
Mr. Mabuza that the deceased used to randomly pick fights in the bar but PW2 denied
this.
[8]
The Accused was arrested by PW5 the investigating officer 4013, Detective Constable M.
Mdluli on the 20/9/2011.A knife (okapi) was found on him which was handed into court
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as the possible murder weapon. Later the Accused handed over a blue two piece overall
and a pair of black male shoes.
[9]
The Accused’s attorney put to the investigating officer that the Accused was assaulted
upon arrest and that the pointing out wherein he surrendered his clothes and an okapi
knife were done after being assaulted and that the Accused was never cautioned of his
rights before the pointing out or surrendering of the knife. PW5 denied that the Accused
was ever assaulted. He was corroborated by PW4 a Mr. Gift Lukhele. PW4 was
requested by the police to witness the pointing out by the Accused. He testified that the
Accused did not show any visible signs of assault, in fact he appeared normal. The
Accused was a neighbor to PW4.
[10]
The defence attorney insisted that the Accused was heavily assaulted so much so that
when he was taken to the Magistrate in order to record a confession the Magistrate
refused to record the confession because the Accused reported that he had been assaulted.
PW5 continued to deny these allegations even when it was put to him that the Magistrate
ordered that the Accused be taken to the hospital for medical treatment as he was
wounded on his back. It was further put to PW5 that the Accused was never taken to the
hospital but was returned to the police cells despite the Magistrate’s order.
[11]
PW6 3905, a police officer testified that on the 18 th September 2011 he attended a crime
scene at Motshane where the deceased was found. He took various photographs of the
scene and collected evidence that he found there. He handed in the photographs as part
of his evidence Exhibits B1 – 14. (photo album). This witness was instrumental in
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sending the exhibits to a science laboratory in South Africa for testing. These included
blood samples and items of clothing from the deceased and the Accused.
[12]
The exhibits that were sent to Pretoria were handed over to Eloise Pagani for testing. Her
findings are recorded in Exhibit B. Because Ms. Pagani was no longer employed by the
police forensic science laboratory in Pretoria PW7 Matukutu Samuel Mashogoane gave
evidence and explained Ms. Pagani’s findings for the benefit of the court.
[13]
PW7 is a DNA specialist based at the science laboratory in Pretoria. He stated that the
DNA tests in casu were carried by Miss Eloise Pagani, a former colleague who used to
work at the science laboratory with him and that he recognised her handwriting and
signature. He testified that his duties were similar to hers and that he was appropriately
qualified to explain her findings. A summary of those findings revealed that the blood
that was found on a pair of trousers belonging to the Accused belonged to the deceased.
The Crown thereafter closed its case and the defence opened its case.
[14]
The Accused testified that on the 18 September 2011, he went to the bar near his home at
Motshane. Upon arrival at the bar he bought two quarts of beer (750 ml). He was joined
by a friend Mukelo who bought a straight of limosine brandy. They drank until sunset
and ran out of cigarettes. The Accused offered to go and buy some more cigarettes from
a homestead nearby where they were cheap as the ones at the bar were expensive. Along
the way on his return he came upon some people who were singing happily. From the
way that they were singing he concluded that they were drunk like him. As they were
about to meet he realized that it was a man and a woman. When they passed him, the
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man insulted him by saying “nasi sigwadzi sihamba sodvwa” (loosely meaning here is a
bachelor walking all alone without a woman).
[15]
Perhaps one may pause here to explain that in our society being referred to as “sigwadzi”
is the ultimate insult.
The English synonym “bachelor” does not carry the same
connotations.
[16]
The Accused says that after he was called “sigwadzi” he responded that he was not a
“sigwadzi” because he had more women that the deceased had. The deceased clapped
him and he clapped him right back. He immediately fell as he was so very drunk. They
began fighting and the woman was cheering them on. He says that because he was drunk
he kept falling but felt that he was winning the fight. Suddenly he felt some wetness on
his skin and realised that the deceased had stabbed him on his right arm. He tried to run
away but the deceased held his foot. The Accused says that he feared that the deceased
was going to finish him off as he was stronger than him, he took out his okapi and
stabbed him. He told the court that he made a living by repairing shoes and that he used
the okapi for that purpose. He says that he does not recall stabbing the deceased although
he recalls that he held the knife while they exchanged blows. He ended up running away
from the scene to the bar and was shocked when he was informed later that he had
stabbed someone to death.
[17]
According to the Accused the fight took place about 100 metres from the bar. Upon
arrival at the bar, Mukelo was shocked at his appearance and asked him what had
happened and he informed him that he was involved in a fight not far from the bar.
Mukelo wanted them to continue drinking but he declined and chose to go home as he did
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not feel alright. He says that when he entered the bar his pants were torn and had blood
on them and he was injured on his ankle. He had blood on his shoes and grass on his
clothes.
[18]
He says that he stayed in bed for two full days because he was depressed and did not feel
well. On the third day the police arrived and asked him to accompany them to the police
station at Mbabane. Upon arrival at the police station the police assaulted him by
clapping him and kicking him until he fell to the floor. While he was on the floor the
police gave him a pen and paper and told him to write how many people he had killed as
they no longer wanted to talk to him. He says that he was not advised of his rights to
representation nor was he cautioned in terms of the judges rules. Blood samples were
taken from him without his permission. The police thereafter took him to the Magistrate
in order to record a confession.
When he arrived at the Magistrate’s Court, the
Magistrate enquired into his state of health. He informed the Magistrate that he was
injured and instead of the police helping him they injured him further.
[19]
He told the Court that the Magistrate declined to record any confession after he had
informed him that he was assaulted by the police. He says that he told the Magistrate that
the police hit him with the butt of a gun and his skin split open until white flesh could be
seen from the wound. The Magistrate ordered that he be taken to hospital. Thereafter the
police refused with his medical report. He further testified that because of his injuries the
Sidwashini Correctional facility refused to accept him as he did not have medical
documentation explaining how he had been injured. The police instead returned him to
the cells where they kept him for three weeks to allow his injuries to heal before taking
him to Sidwashini Correctional facility.
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[20]
The Honourable Magistrate, Mr. Shongwe in his testimony confirmed that he declined to
record a statement from the Accused after he had been informed by him that the police
had assaulted him. He did not ask to examine the alleged injuries because he took the
Accused’s word for it.
[21]
When the Accused was cross-examined on the 28/01/2014 Mr. Mabuza no longer
represented him instead Miss N. Mazibuko of the same firm of attorneys represented him.
[22]
The first issue that Mr. Dlamini for the Crown traversed in the cross-examination of the
Accused was that the Accused was initially charged with house breaking and theft and
two counts of robbery during September 2011 and was only charged with murder on 23
January 2012.
This was a departure from the evidence led by Mr. Mdluli the
investigating officer who told the court that he charged the Accused with house breaking;
theft and murder during September 2011 and took him to record a confession with regard
to the murder charge on the 22 September 2011. PW6, a crime of scenes police officer
told the court that he attended the crime scene where the deceased’s body was found on
the 18 September 2011 and the post-mortem on the 21 September 2011. On the 22
September 2011 he received exhibits from officer Mdluli which were a pair of black
shoes and blue cover-all top and an okapi knife which belonged to the Accused.
Naturally the Accused’s responses to Mr. Dlamini’s questions were that he was charged
with the robbery and housebreaking offences plus murder at the time he was remanded on
the 23 September 2011.
[23]
Secondly, the Accused was questioned about not telling the Magistrate that he was
assaulted by the police. But the statement made to the Magistrate clearly states at
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question 11 and 12 of the pro-forma that the Accused reported to the Magistrate that he
was assaulted by five police officers who kicked him all over the body and that they also
assaulted him with the back of the guns that they were carrying. That he was bruised on
the right side of his body and his ribs were painful. His response to Mr. Dlamini’s
question was that the Magistrate thereafter issued an order that he be taken to the hospital
for medical treatment because he was assaulted.
[24]
The third aspect of the cross-examination of the Accused is that he was busy robbing
people hence the unexplained blood on his shoes which neither matched his blood or that
of the deceased. As the Crown case was closed there was no basis for the introduction of
the robbery issue. There was no prior indication when the Crown led its evidence that
this issue would arise. Naturally the Accused denied the accusation. It is my considered
opinion that at this stage of the proceedings the accusation of robbery has no relevance
and is best ignored.
[25]
It was put to him that he did not report the provocation, attack and injury on him to the
police because nobody had attacked him. The Accused responded that he did not report
the incident because they were drunk, the police station is far away and the injury on him
was minor.
[26]
The evidence presented in this case is mostly circumstantial. The deceased was found
not far from the bar where the Accused and his friend Mukelo were drinking. According
to PW1, the cause of death was haemorrhage as a result of a penetrating injury to the
chest which wound was the fatal wound. The wound he said was consistent with a sharp
weapon such as a knife because the wound had clean cut edges. The Accused testified
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that during the fight with the person who attacked him, he defended himself by stabbing
that person with an okapi knife. The fight with the unknown person took place about 100
metres from the bar where he and Mukelo were drinking. The DNA report disclosed that
the blood that was found on the Accused’s trousers matched that of the deceased.
[27]
In summary:

The deceased was stabbed in the chest;

He was found near the bar where the Accused was drinking,

The fight between the Accused and the unknown man took place 100
metres from the bar;

The blood on the Accused trousers belonged to the deceased. All these
factors lead to the inescapable inference that it was the deceased that the
Accused stabbed on that fateful night.
[28]
Having established that it was the Accused who fatally stabbed the deceased has the
Crown proved an intention to kill? I think not. The Accused testified that he did not
know the Accused and had no reason to kill him. The Crown belatedly supplied a motive
to kill, that of robbery but as intimated earlier there was no basis set out by the Crown for
robbery being the motive and subsequent intention to kill the deceased. It is the Accused
who supplied the reason for the stabbing of the deceased. He testified that the deceased
insulted him and called him “sigwadzi” and when he responded that he was not
“sigwadzi”, he in fact had more women than the deceased, the latter clapped him and he
retaliated and a fight broke out.
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[29]
The Accused says that the deceased stabbed him first on the right arm. There is no
medical evidence to corroborate this injury because the police did away with his medical
report and refused to hand it over to him. The medical report would have provided proof
that he was assaulted by the police and also the scar on his right arm that was inflicted by
the deceased.
[30]
The Accused further says that he stabbed the deceased only when he felt that he was
being over-powered by the deceased as he (Accused) was very drunk. He ran away after
stabbing him once.
[31]
The facts of the case clearly support a finding of culpable homicide and not murder. The
Accused is acquitted of murder and found guilty of culpable homicide.
SENTENCE
[1]
The Accused is a first offender. He is 32 years old. He repairs shoes for a living. He has
one child who is 2 years old whom he supports together with his mother. He was
provoked by the deceased. The deceased was the author of his own misfortune. I shall
take all these factors into account.
[2]
I shall also take into account that the police assaulted him. Assaults carried out by the
police on suspects are now a common feature. They happen so often that in most trials
the assaults feature prominently. There has to be another way of investigating suspects
than torturing them into admitting crimes they are alleged to have committed. This
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means that suspects are now punished by the police and by the courts and this fact must
be factured into an accused’s just desserts.
[3]
In the circumstances, the Accused is sentenced to 7 years imprisonment without an option
of a fine. The sentence is backdated to 22/9/2011 in terms of section 16 (9) of the
Constitution of Swaziland.
Q.M. MABUZA -J
JUDGE OF THE HIGH COURT
For the Crown
:
Mr. S. Dlamini
For the Respondent
:
Miss N. Mazibuko
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